Pootchemunka v Marpondin
[1999] QSC 193
•18 August 1999
IN THE SUPREME COURT
OF QUEENSLAND No. 6947 of 1999
Brisbane
[Pootchemunka v Marpondin]
BETWEEN:
SONIA POOTCHEMUNKA
Applicant
AND:
MYRTLE MARPONDIN
Respondent
REASONS FOR JUDGMENT - CHESTERMAN J
Judgment delivered 18 August 1999
CATCHWORDS: CRIMINAL LAW - compensation - s. 663B Criminal Code - assessment of compensation accounting for applicant’s contributory behaviour, physical injuries and psychological damage.
Counsel:Mr A Kimmins for the applicant
Solicitors:Russell and Company as town agents for Mr Tony Bailey
Hearing Date: 4 August 1999
IN THE SUPREME COURT
OF QUEENSLAND No. 6947 of 1999
Brisbane
BETWEEN:
SONIA POOTCHEMUNKA
Applicant
AND:
MYRTLE MARPONDIN
Respondent
REASONS FOR JUDGMENT - CHESTERMAN J
Judgment delivered 18 August 1999
By an application dated 28 July, 1999 the applicant seeks criminal compensation from the respondent in respect of injuries she sustained in, and as a result of, an assault on 21 April, 1995 at Aurukun, in the State’s far north. There is no time limit within which such applications have to be brought. The applicant explains her delay in seeking compensation by reference to the remoteness of her location and the unavailability of legal advice.
On 4 September, 1995 the respondent pleaded guilty to an indictment alleging that she unlawfully did grievous bodily harm to the applicant. She was sentenced to eighteen months’ imprisonment with a recommendation that she be eligible for parole after serving six months.
The applicant’s account of the incident given in her affidavit is quite succinct. She said:
“... I was attacked and assaulted ... for no reason whatsoever. [The respondent] scratched my eye with her fingernails. I became angry and went home to get a knife. I returned to where the Respondent was and left my knife in my pocket. I did not want to use it. I saw a stick and as a reaction to the attack upon me by the Respondent earlier, I hit her across the back with the stick. At that point the Respondent produced a large black handled knife and stabbed me with the knife twice.”
The applicant was born on 7 April, 1980 and was fifteen at the time of the offence. The respondent is some years older.
The circumstances are a little more complicated than the applicant’s affidavit suggests. The respondent has borne a child to Angus Kerindun. She regarded him as “her man”. Rightly or wrongly the respondent suspected Kerindun of having spent the night prior to 21 April, 1995 with the applicant. The respondent apparently taxed Kerindun with her suspicion and was beaten for her trouble. She then spoke to the applicant and accused her of encouraging Kerindun in his infidelity. The applicant denied the aspersion. There then developed what one witness described as “a little bit of a fight” and by another as “a fair fight” which unfortunately degenerated into hair pulling and necessitated the intervention of two male by-standers. According to one of them the applicant was crying because the respondent “gave her a good flogging”. Both girls were bleeding from the mouth. The applicant claimed to have been scratched in the eye by the respondent. After they were separated the applicant, nursing a sense of grievance as well as her wounds, went to her grandmother’s where she armed herself with a small knife. She returned, seeking revenge, to the respondent. She concealed the knife and did not use it. Instead she picked up a stick with which she struck the respondent across the back. The respondent was also armed, but with a bigger knife. She drew it and advanced towards the applicant who took fright and turned to run. She fell, dropping the stick. As the respondent approached, the applicant was supine, defenceless and crying. She was stabbed twice, once on the left shoulder and once into the lungs.
The applicant’s wounds were life-threatening but were treated quickly. She was taken to the Aurukun Health Centre where she was treated by a nurse who noticed that the applicant had suffered a deep penetrating chest wound and was bleeding profusely. The left lung collapsed. Appropriate dressings were applied and intravenous fluid supplied. The Royal Flying Doctor Service was contacted and flew the applicant to Cairns Base Hospital.
The applicant was treated competently and made a full and quick recovery. The intercostal catheter inserted to drain blood from the damaged lung was removed on 26 April. The following day the applicant was discharged and allowed to go home. The hospital reported that the applicant should have no after-effect from her injury save that it would be unwise for her to engage in scuba diving. There is no indication that the applicant has ever had an interest in that sport.
The applicant was examined by Dr Curtis, a psychiatrist, who reported that the applicant:
“suffered an Acute Stress Disorder in response to the trauma of being knifed ... This amounted to a moderate nervous shock. Recovery was in line with the duration of a severe Acute Stress Disorder, but in clinical criteria, the syndrome fell short of a full blown continuing Post-Traumatic Stress Disorder. She continues to have mild psychological sequelae, some of which may continue ... for a long time. Other reactions appear to have gradually subsided over time.”
Dr Curtis noted that the applicant:
“impressed as a strong young woman. She is spirited and attempts to assert herself in situations. She realised that making a complaint about [the respondent’s] stabbing ... had brought down community criticism ... she coped with that by forming an alliance with [the respondent] when [she] returned from jail. This is clearly a sign of a resourceful, resilient type of person.”
As I understand Dr Curtis’s report the only persisting psychological symptom expressed by the applicant is a sense of fear and desire to avoid fighting especially when the combatants have knives. It makes her “nervous”. For that reason she stays away from “big gatherings” at Aurukun. Dr Curtis describes the symptom as “mild”. He expects it to continue for “a long time”.
Compensation is to be assessed in accordance with the ordinary principles by which damages are awarded for personal injury in civil cases: see R v. Jones; ex parte McClintock (1995) A Crim R 238 at 242.
Although the applicant was seriously injured she was expertly treated and has made a full recovery from her physical wounds. She was in hospital for six days and was discharged fully recovered. The injury has no lasting effect. The applicant’s psychological injury was more severe but recovered over months to its present low level. She is left with mild anxiety or nervousness when reminded of violence involving knives or encounters occasions where such violence may be resorted to.
The applicant is, luckily, a young woman of robust personality and sound common sense. She has put the past behind her and come to terms with community disapproval and the respondent’s enmity. She has disarmed the former and befriended the latter. Very commendably she has not sought to exaggerate her injuries or their effect upon her. Dr Curtis expects the applicant’s recovery from her anxiety to be complete over time.
In these circumstances only a modest award of compensation is called for. For her physical insult I assess compensation in the sum of $4,000.00. For nervous shock I make an assessment of $12,000.00.
Section 663B of the Criminal Code applies to the application because the offence was committed prior to 18 December, 1995. Subsection 2 provides that:
“... in determining the amount of any order, the Court shall have regard to any behaviour of the person aggrieved which directly or indirectly contributed to the injury suffered by the person ...”
The applicant was in fact the instigator of the incident which led to the respondent’s attack. Having lost the first fight the applicant armed herself with a knife with which she intended to assault the respondent. She did not use that weapon but did strike her opponent with a stick. That violence did not justify retaliation by means of a knife. Moreover, when the wounds were inflicted the applicant had ceased to be a threat to the respondent. She was, as I have said, defenceless, offering no resistance, and distressed. She was considerably younger than the respondent. By far the greater share of responsibility for the attack lies with the respondent. I think it appropriate to reduce the award by twenty per cent to take into account the applicant’s behaviour which contributed to her misfortune.
I order that the respondent pay to the applicant the sum of $12,800.00 by way of criminal compensation. I further order that the respondent pay the applicant’s costs of and incidental to the application to be taxed on the appropriate District Court scale.
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